Ducat and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 909
•26 November 2015
Ducat and Repatriation Commission (Veterans’ entitlements) [2015] AATA 909 (26 November 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/0518
Re
Peter Ducat
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 26 November 2015 Place Sydney The Tribunal has jurisdiction to review the decision of the Veterans’ Review Board made 4 December 2014.
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J W Constance
Deputy PresidentCATCHWORDS
VETERANS AFFAIRS- jurisdiction- whether the AAT has jurisdiction to review- interim decision made by Veterans' Review Board under section 152(2) of Veterans' Entitlement Act 1986- interim decision not within power- validity of subsequent decision made by Veterans' Review Board- Tribunal has jurisdiction to review
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25(1)
Veterans' Entitlements Act 1986 (Cth) ss 139(3), 152(2), 175(1)
CASES
Re Cooney and Repatriation Commission (1991) 23 ALD 431
REASONS FOR DECISION
Deputy President J W Constance
26 November 2015
INTRODUCTION
Mr Ducat has applied to the Tribunal to review a decision of the Veterans’ Review Board made 4 December 2014 which assessed his entitlement to payment of a pension under the Veterans’ Entitlement Act 1986 (Cth).
A preliminary question has arisen as to the Tribunal’s jurisdiction to review the Board’s decision. For the reasons which follow I have decided that the Tribunal does have this jurisdiction.
BACKGROUND
Mr Ducat served in the Royal Australian Air Force from 1979 until December 1999. This service qualified him for payment of a pension under the Act should he have suffered a disability as a result of his service.
His accepted service-related conditions are:
·lumbar spondylosis (from 16 August 2010);
·labral tear of the right shoulder (from 25 November 2010);
·cervical spondylosis (from 25 November 2010);
·tinnitus (from 20 August 2012).
Following the acceptance of these conditions, the Commission decided that Mr Ducat was entitled to payment of a disability pension at 50% of the general rate. On 24 April 2012 Mr Ducat applied to the Veterans’ Review Board to review the Commission’s decision.
On 7 September 2012 the Board issued the following decision:
ADJOURN the hearing of the application under section 152 of the Veterans’ Entitlements Act 1986 pending further investigation in terms of the letter to the Secretary, Department of Veterans Affairs, which is attached.[1]
[1] T27.
On 1 March 2013 the Board conducted a hearing of Mr Ducat's application and issued a decision in the following terms:
SET ASIDE the decision under review and substitute its decision that pension be assessed at 90% of the General rate to operate from and including 25 November 2010.
ADJOURN hearing of the application in relation to any entitlement to above General rate pension, under section 152 of the Veterans Entitlements Act 1986 pending further investigation in terms of the letter to the Secretary, Department of Veterans Affairs, which is attached.[2]
[2] T28.
A copy of the decision and reasons for the decision was forwarded to Mr Ducat with a covering letter dated 21 March 2013 which included the following:
The Board considered your application on 01 March 2013. That hearing was adjourned to enable the Board to seek a further report from the Secretary… Your application will again be listed for hearing when the Board has received that report from the Department.[3]
[3] T28.
The Board also wrote to the Secretary of the Department. The letter noted:
Mr Ducat's application for review came before the Board on 1 March 2013 … The Board was unable to finalise the matter in relation to Disability pension at and above General rate, as it requires further medical evidence.[4]
[4] T28.
Over the ensuing months further medical investigations were carried out. From time to time the Board wrote to Mr Ducat enclosing various medical reports. The Board’s letters to Mr Ducat of 29 May 2013[5], 28 August 2013[6], 21 November 2013[7] and 1 April 2014[8] all stated:
The Board considered your application on 1 March 2013. That hearing was adjourned to enable the Board to seek a further report from the Secretary …
… In the meantime the hearing of your application remains adjourned.
[5] T29.
[6] T30.
[7] T31.
[8] T32.
The Board held a resumed hearing on 4 December 2014. On the same day the Board issued a decision as follows:
The Veterans Review Board decided to:
Confirm the decision the Board had previously made on 1 March 2013, that is:
SET ASIDE the decision under review and substitute its decision that pension be assessed at 90% of the General rate to operate from and including 25 November 2010.[9]
[9] T2.
On 4 February 2015 Mr Ducat applied to the Tribunal to review the Board’s decision of 4 December 2014.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Subsection 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for the review of decisions made in the exercise of powers conferred by that enactment … .
Veterans’ Entitlement Act 1986 (Cth)
Administrative Appeals Tribunal given power to review
This Act confers the power to review in the following circumstances:
Subsection 175(1)
If:
(a) a decision of the Commission has been reviewed by the Board upon an application made under section 135; and
(b) either :
(i) the Board affirms or varies the decision; or
(ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;
applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.
The powers of the Board when reviewing a decision of the Commission
Subsection 139(3) provides in part:
(3) For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside ….
The powers of the Board when further documents or information is required
Section 152 provides:
(1) The Board may, at any time, request the Secretary:
(a)to forward to the Board further documents in the custody of the Secretary relating to a review;
(b)to obtain, and forward to the Board, further documents relating to a review; or
(c)to arrange for the making of any investigation, or any medical examination, that the Board thinks necessary with respect to a review, and to forward to the Board a report of that investigation or examination.
(2) Where a request is made under subsection (1), the Board shall adjourn any hearing of the review to which the request relates and may, in the case of a review of a decision with respect to a pension assessment, vary that assessment pending the completion of that review, having regard to the records and evidence on which the Commission reached that decision.
THE COMMISSION’S ARGUMENT
The Board’s first decision was that made on 7 September 2012, to adjourn the hearing. This it was entitled to do.
On 1 March 2013 the Board decided to set aside the decision under review and substitute its decision that Mr Ducat's pension be assessed at 90% of the General rate. In so doing, the Board exercised the power given to it by subsection 139(3)(c) and therefore exhausted its power to make decisions under the Veterans’ Entitlements Act in respect of Mr Ducat's application.
As the Act does not give the Board the power to review its own decisions, the decision it purported to make on 4 December 2014 is a nullity. It follows that the Tribunal does not have jurisdiction to review this purported decision as it was not a decision under section 139.
DISCUSSION
The Veterans’ Entitlement Act is beneficial legislation and should be interpreted accordingly.[10]
[10] Starcevich v Repatriation Commission (1987) 76 ALR 454.
It is clear from the provisions of subsection 152(2) that, in the case of a pension assessment such as this, the Board is required to adjourn the hearing when a request is made for further information from the Secretary. It is clear also that in such circumstances the Board may vary the assessment pending completion of the review. In light of this subsection I cannot accept the argument of the Commission that there is no concept of an interim decision in the Act.
In its decision of 1 March 2013 the Board made it clear that it was exercising the powers given to it by subsection 152(2). It made two decisions in the exercise of those powers – it assessed the rate of pension payable on the information it had available and it adjourned the hearing pending receipt of the information requested of the Secretary.
Unfortunately, the Board appears to have gone further than it was empowered to do by section 152 in that it purported to set aside the decision under review and substitute a new assessment of the rate of pension. To do this it would have needed to exercise the power given by subsection 139(3).
It is clear from the wording of the decision itself and from the subsequent correspondence that the Board did not intend to make a final decision on 1 March 2013. It is consistent also with the Board not having advised Mr Ducat of his right of appeal to this Tribunal when it advised him of its decision. Rather than the decision of 4 December 2013 being a nullity, that part of the decision of 1 March 2013 which purported to set aside the decision under review was made outside of the power the Board was intending to exercise.
I note my conclusion is consistent with an earlier decision of the Tribunal in Re Cooney and Repatriation Commission.[11]
[11] (1991) 23 ALD 431.
On this basis, the decision of 4 December 2014 is a valid exercise of the powers given to the Board by the Veterans’ Entitlements Act. As Mr Ducat applied to review this decision within the prescribed time, it follows that the Tribunal has the jurisdiction to review it.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated 26 November 2015
Date(s) of hearing 21 August 2015 Solicitors for the Applicant E Rice; Legal Aid NSW Solicitors for the Respondent T O'Reilly; Department of Veteran's Affairs
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Statutory Construction
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